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The future of environmental enforcement? Petition dismissed in Southern California Alliance Of Publicly Owned Treatment Works v. US EPA

A new decision in the Ninth Circuit Court of Appeals gives new validity and influence to objection letters sent by the US Environmental Protection Agency to state and local environmental agencies, and may open the door for the EPA to employ informal methods of strict environmental enforcement. This would give the embattled, budget-restricted EPA less costly means of preserving its enforcement programs − all the more significant in light of the Trump Administration's deep budget cuts and other restrictions on the agency.

The Ninth Circuit dismissed a petition by Southern California Alliance of Publicly Owned Treatment Works (SCAP) against the EPA, finding the court lacked jurisdiction to review an EPA objection letter to a draft stormwater discharge permit under the National Pollutant Discharge Elimination System (NPDES) of the Clean Water Act (CWA).

The EPA's objection said the Los Angeles Regional Water Quality Control Board's draft permits needed specific numeric effluent limits. SCAP, an alliance of public treatment plants, argued such limits were not requirements under the CWA. The Los Angeles Board responded and incorporated the EPA's objections into the permits themselves. SCAP sought review of the EPA's objection letter, claiming that it incorporated guidance contrary to the CWA and was a de facto regulation, whereby EPA sidestepped the Administrative Procedures Act and the mandatory comment period.

On April 12, 2017, the Ninth Circuit rejected SCAP's arguments, concluding that EPA's objection letter was not the same as an "issuance or denial" of the permit, meaning the Ninth Circuit lacked the power to review it. Rather, SCAP would need to exhaust administrative review with the governing agency, the State Water Resources Control Board. The Ninth Circuit noted that the Los Angeles Regional Board "may take a more aggressive view of the requirements for keeping the state's waters clean. In that circumstance, any request for review of EPA's Objection Letter would be moot…"

This case suggests EPA, losing one-third of its budget and numerous employees and programs, might have an informal, cost-effective and quick mechanism to advance more stringent environmental programs and enforcement.

While EPA's "objection letters" are technically non-binding statements of advice, any state agency would be foolish to ignore them − EPA has the ultimate power to transfer the permit out of the state's hands back to the federal level. Some would argue the EPA may thereby exert de facto rulemaking power short of actual comment and adherence to the APA. The Ninth Circuit's refusal to undertake an independent review of the objection letter, and its observation that states may enact more aggressive environmental requirements, suggests it is unlikely that a state appeal would be successful.

This case paves the way for what could be a major element of future environmental enforcement, at least in the near term: informal objections and inquiries by the EPA or other federal agencies to impose robust standards in lieu of new rulemaking or legislation.